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Estate of Russell

    Brief Fact Summary. Russell executed a will disposing of all her real and personal property to a close friend and her dog. The trial court held that the gift to the dog was precatory in nature and that the testator intended that her close friend care for the dog. Another beneficiary in the will appealed the decision.

    Synopsis of Rule of Law. The anti-lapse statute applies to void gifts as well as beneficiaries who predecease the testator. Extrinsic evidence is admissible to prove the testator’s intent if in light of the circumstances surrounding the creation of the will, the language in the will is susceptible to two or more meanings.

    Facts. Thelma Russell executed a will leaving her real and personal property to H. Quinn and Roxy Russell. Roxy Russell was Russell’s dog. Russell also disposed of jewelry and money to Georgia Nan Russell Hembree. The trial court held that Russell intended Quinn to receive all of her personal and real property and that the gift to the testator’s dog merely reflected a wish that Quinn care for the dog. Hembree appeals the decision.

    Issue.
    Whether a gift lapses under the anti-lapse statute if the gift is void?

    Whether extrinsic evidence is admissible because the language of a will could reasonably signify two or more meanings?

    Held.
    A gift lapses under an anti-lapse statute if the gift is void. Testamentary gifts to animals are void. The gift to the dog lapses under the anti-lapse statute.

    Extrinsic evidence is not admissible to prove the testator’s intent because the language of the will does is not reasonably susceptible to one or more meaning. Here the testator left her property to an person and to her dog. The language did not state that the testator was making a gift to a person for the benefit of the dog. The will on its face makes a gift to the dog. The language is not precatory in nature. Extrinsic evidence is not admissible to prove the testator’s intent.


    Discussion. In determining whether a gift is clear and definite, a court will consider outside evidence concerning the creation of the will. However to prevent fraud, the court will not allow the evidence if the will itself does not reasonably reflect the intent attempted to be proved by the outside evidence.


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